12/20/2005

Eminent domain clash peaking: Pioneer Press (St Paul MN), 12/18/05

A long-standing fight between Afton landowners over a proposed road comes to a head this week, when the City Council is set to decide whether to launch eminent domain proceedings to build it.

If the city votes Tuesday to go forward and ends up acquiring 1.5 acres of land to build a north-south extension of 45th Street, it would be a first for this small St. Croix River Valley community, officials say.

Boris Popov needs the road to build on vacant land he owns on the bluff above the river. He owns more than 12 acres, but only the lower portion can be reached by road. Popov, who lives nearby in Afton, claims the lower section can't be built upon because of its steep slope; he wants the city to build a road on the bluff from 45th Street to the upper section of his and a nearby parcel.

"It's an ugly scenario, and it's an unfortunate scenario," he said. "But what is worse than taking the land by eminent domain is to deny a citizen the right to use their land."

Mark and Kathy Dahl own two of the three parcels south of Popov's property and oppose the road. Under the city's plan, they would lose about 1 acre on the western edge of their 20-acre plot for the road.

"It's a land grab," said Mark Dahl. "I'm staggered that the city can take someone's land against their will. The fundamental question is, where does it end? Can they take an inch, a half mile or mile?"

Dahl is a surgeon, but he and his wife are also accomplished artists — he is a sculptor and she paints. They bought their land overlooking the St. Croix five years ago so they would have a quiet place to pursue their passion.

"I looked for four years for a property where I could stand in the middle of it and not hear cars," said Kathy Dahl. "We've worked all our lives to have 20 acres and not hear traffic. We don't want a road there, and we don't think it's right to have one citizen of Afton being favored over another citizen of Afton."

Mark Dahl said it is wrong for the city to use eminent domain to acquire property for what he called a private use.

"Why should (Popov) get a second access point when the public is not served by this?" Dahl asked. "The only purpose of this road is to give him more lots, and that's not a legitimate reason to take privacy away from another citizen."

Popov said other nearby landowners also would benefit from the road, which would run about 1,000 feet.

Afton Mayor Dave Engstrom says the city has the power to acquire the land and sees a public purpose to the road.

"We have to grant reasonable access to (Popov's) property," Engstrom said. "The buildable part of the lot is on the top of the hill where he doesn't have access. I would not vote on the variances needed to build where he does have access because of the steepness (of the land)."

The Dahls and Philip and Margaret Thuma, who would lose some of their 9 undeveloped acres for the road, also are challenging the city's claim that the road to Popov's property would follow the path of what the City Council has declared an abandoned roadway.

The Dahls and the Thumas claim that road is simply an old driveway that never reached Popov's land. The Dahls lost a district court case on that issue after a judge ruled it was up to the City Council to decide the matter, but they have since appealed.

Margaret Thuma said the lower part of Popov's acreage could be developed if the proper variances were granted.

"There is no public use served by this road," she said. "Rather, this is a private convenience being provided to one individual. We're going to fight this, and we're not going to grant them access through our property at all."

Engstrom expects the City Council on Tuesday night will authorize staff to proceed with a petition for eminent domain. The first step will be for the city to try to reach a settlement with the landowners.

The mayor said property owners would be paid for any land acquired for the roadway, while "benefiting landowners" will be assessed some of the cost of the road's construction.

City officials have yet to decide who would be declared a "benefiting landowner." That decision will follow appraisals that should be finished in February and would be the basis of purchase offers made to the Thumas and the Dahls.

They would then have up to 60 days to review the offers or have their own appraisals done. If they decide not to accept, the City Council would need to vote again — probably sometime next spring — to take the land through eminent domain. The couples would still be paid for the land in that event.

The Thumas and the Dahls say they would not benefit from the road and should not be assessed any portion of its estimated $225,000 cost.

If Afton does pursue it, the city will be among a small percentage of Minnesota municipalities to have done so. In the last 6½ years, only about one in six Minnesota cities has used eminent domain, according to a survey by the League of Minnesota Cities.

"We know it is often controversial because it is a very awesome power," said Eric Willette, manager of policy analysis for the league. "Cities have to take the power seriously, and it can't be done on a whim. The interest of (a) private property owner has to be placed second to the public good."

The issue has been on the front burner this year following the U.S. Supreme Court ruling that New London, Conn., could seize private property through eminent domain to make way for new private development.

Engstrom said eminent domain has gotten a bad rap lately because of that decision."This is not taking from a private party and giving it to a private developer," he said. "This is compensating (landowners) for a strip of land for public use, which is a road. This is a public road for public use."

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